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De Veloz v. Miami-Dade County

United States District Court, S.D. Florida

June 8, 2017

FIOR PICHARDO DE VELOZ and CESAR CRISTOBAL VELOZ TIBURCIO, Plaintiffs,
v.
MIAMI-DADE COUNTY, et al., Defendants.

          ORDER

          CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE

         THIS CAUSE came before the Court on Defendants, Miami-Dade County, the Public Health Trust, Miami-Dade Corrections and Rehabilitation, Daniel Junior, Officer Audrey Morman, Sergeant Regina Price, Officer Kimberly Jones, Officer Tavarez Carter, Corporal Travarri Johnson, Carlos A. Migoya, Dr. Fredesvindo Rodriguez-Garcia, and Nurse Fatu Kamara Harris's Motion to Dismiss [ECF No. 75] filed February 23, 2017. Plaintiffs, Fior Pichardo de Veloz and Cesar Cristobal Veloz Tiburcio, filed their Response [ECF No. 83] on March 23, 2017; to which Defendants filed a Reply [ECF No. 91] on April 6, 2017. The Court has carefully considered the parties' written submissions, the record, and applicable law.

         I. BACKGROUND

         Plaintiffs bring this suit seeking damages under 42 U.S.C. section 1983 and on various state law theories against Defendants for injuries sustained by Fior Pichardo de Veloz[1] during her time in the custody of the Miami-Dade Corrections and Rehabilitation Department (“MDCR”). (See generally Second Amended Complaint [ECF No. 40]). On November 4, 2013, Pichardo traveled from the Dominican Republic to Miami for a family visit. (See Id. ¶ 3). At the time, Pichardo was 50 years old and undergoing hormone replacement therapy as prescribed by her doctor to address the symptoms of menopause. (See Id. ¶¶ 3 (citation omitted), 21). Pichardo also suffered from high blood pressure. (See Id. ¶ 3 (citation omitted)).

         When she arrived at Miami International Airport, Pichardo was arrested on an outstanding warrant and booked into the Turner Guilford Knight Correctional Center (“TGK”). (See Id. (citations omitted); see also Resp. 2). Upon her arrival at TGK, a non-defendant officer conducted a strip search of Pichardo at 7:17 p.m., “look[ing] at [the inmate's] entire body and mak[ing] sure there [was] nothing inserted up the reproductive area.” (2d. Am. Compl. ¶ 24 (citation omitted; second alteration in original)). Strip searches are directed by corrections officers although medical staff is often present. (See Id. ¶ 32 (citation omitted)). According to the officer who conducted the search, she “did not notice anything abnormal.” (Id. ¶ 24).

         Due to Pichardo's history of high blood pressure, Defendant Officer Kimberly Jones escorted her to the medical unit for evaluation later that night. (See Id. ¶ 25). Upon arrival at the medical unit, at approximately midnight on November 5 (see SIAB Mem. ¶ 36), Pichardo was placed in a cell with other female inmates (see 2d Am. Compl. ¶ 25). Defendant Officer Audrey Morman was working in the medical unit. (See id.). Prior to seeing or interacting with Pichardo, Defendant Nurse Harris approached Officer Morman's desk to question her about Pichardo's sex, apparently based on a note in Pichardo's file regarding hormone replacement therapy. (See id.; see also Mot., Ex. 3, Statement of Officer Morman[2] [ECF No. 75-3] 6:14-7:5). Nurse Harris indicated she believed Pichardo might be male because she was undergoing hormone replacement therapy. (See Morman Statement 7:2-20). Officer Morman pointed out Pichardo's file listed Pichardo as female and explained she believed Pichardo to be female, but Nurse Harris stated she would nevertheless “check her out.” (Id. 7:25-8:8).

         Officer Morman accompanied Nurse Harris to retrieve Pichardo from the cell for her examination. (See Id. 8:23-9:2). Nurse Harris then asked Pichardo if she was female and had “female parts, ” and a visibly offended Pichardo replied she was. (Id. 9:9-16; see also 2d Am. Compl. ¶ 26).

         Nurse Harris escorted Pichardo into the examination room; Officer Morman did not accompany them. (See 2d Am. Compl. ¶ 27). While in the examination room, Pichardo did not remove her clothes. (See id.) According to the Second Amended Complaint and SIAB Memorandum, neither Nurse Harris nor the physician on duty, Dr. Fredesvindo Rodriguez-Garcia, physically examined Pichardo. (See SIAB Mem. ¶¶ 39, 43; see also 2d Am. Compl. ¶¶ 31 (citation omitted), 50 (citation omitted)). Only Dr. Rodriguez-Garcia was present while Pichardo was in the examination room. (See 2d Am. Compl. ¶ 32 (citation omitted); see also SIAB Mem. ¶ 43).

         Following the examination, Nurse Harris told Officer Morman, “everything fell out, ” by which she meant “penis, testicles.” (2d Am. Compl. ¶ 27 (citation, internal quotation marks omitted); Morman Statement 11:2-8). Officer Morman explained she believed Pichardo appeared to be female, but Nurse Harris insisted Pichardo was a male. (See 2d Am. Compl. ¶ 27; Morman Statement 11:2-8).

         Officer Morman reviewed Pichardo's file, confirmed she was strip-searched during booking, and observed the file did not note any issues regarding Pichardo's classification as a female during the strip search. (See 2d Am. Compl. ¶ 28 (citations omitted)). Officer Morman then called her supervisor, Defendant Sergeant Regina Price, to explain the situation. (See Id. ¶ 29). Sgt. Price also apparently questioned whether Pichardo was male but nevertheless gave instructions to have Pichardo taken to an all-male cell. (See Id. (citation omitted)).

         Upon her return to the examination unit, Officer Jones - the escorting officer - was informed of the change in the determination of Pichardo's sex. (See Id. ¶ 30 (citation omitted)). Officer Jones asked Nurse Harris two to three times whether she had strip-searched or physically checked Pichardo to determine whether Pichardo was a male. (See Id. (citation omitted); Mot., Ex. 2, Statement of Officer Jones [ECF No. 75-2] 7:15-8:14). Nurse Harris did not verbally confirm she physically examined Mrs. Pichardo, but finally replied, “she's a man.” (Jones Statement 8:2-3, 8:9-17).

         Officer Jones, apparently still doubtful of the correctness of Nurse Harris's statements, contacted her supervisor, Sgt. Price, for guidance. (See Id. 15:17-16:3). Sgt. Price directed Officer Jones to contact Booking and advise the department of the change in Pichardo's sex determination. (See Id. 16:5-9). Officer Jones followed Sgt. Price's orders and notified Booking of the change. (See 2d Am. Compl. ¶ 35). A Booking officer changed Pichardo's file without first reviewing any supporting documentation. (See id.).

         Following the change to her file, Pichardo was transferred to Metro West, an all-male facility. (See Id. ¶ 36). She arrived at Metro West at approximately 12:43 p.m. on November 5. (See SIAB Mem. ¶ 36). She was placed with the general population in Three Alpha Wing. (See 2d Am. Compl. ¶ 37). A female officer, referred to as Officer Jane Doe No. 1, placed Pichardo in the cell. (See Id. ¶ 38). Officer Doe No. 1 apparently acknowledged Pichardo was female, but said only “you are a woman. Good luck if you are alive tomorrow.” (Id. (internal quotation marks omitted)).

         After her placement in Three Alpha Wing, Pichardo was surrounded by approximately 40 men and harassed by the male inmates. (See Id. ¶ 39). Pichardo later told the investigator she felt “psychologically assaulted because everyone looked at her as if she was a piñata.” (Id. (citation, internal quotation marks omitted)). Pichardo was too afraid to use the all-male bathroom and instead urinated on herself. (See Id. (citation omitted)). At some point, she asked an unknown female officer to move her out of Three Alpha Wing “because she was going to go crazy.” (Id. (citation omitted)).

         Defendant Officer Tavarez Carter, who was in charge of conducting head counts in Three Alpha Wing, noted Pichardo looked scared to get off her bunk and did not want to interact with other inmates. (See Id. ¶ 41 (citation omitted)). According to Officer Carter, Pichardo was assigned to Bunk 2, which is closest to the supervising officers. (See Resp. 6). Officer Carter told the investigator Pichardo was specifically assigned to Bunk 2 “because whenever there is someone that looks like a female, we always put [th]em to the front so that the officer can watch them.” (Id. (alteration added; citation omitted)).

         On November 5, 2013, Pichardo's family members, in their attempts to contact Pichardo, questioned corrections officers at TGK as to why Pichardo was housed at an all-male facility. (See SIAB Mem. ¶ 6). As a result of their prodding, a corporal at TGK contacted the Shift Commander who initiated an investigation into Pichardo's sex. (See id.). Pichardo was strip-searched a second time, this time by non-party Nurse De La Espriciella in the North Clinic at Metro West. (See 2d Am. Compl. ¶ 42). This second strip search took place between 6:50 p.m. and 8:23 p.m. on November 5. (See SIAB Mem. ¶ 36). Pichardo claims there were several male corrections officers present, laughing at her during the search. (See 2d Am. Compl. ¶ 42). Pichardo also recalls photographs were taken of her while she was undressed. (See id.). Following this strip search, which confirmed Pichardo's biological sex to be female, Pichardo was separated from the general male population. (See id.).

         Pichardo was subsequently returned to TGK and housed in an all-female unit. (See SIAB Mem. ¶ 6). On November 6, 2013, Pichardo was released from MDCR to the custody of the United States Marshal Service. (See 2d Am. Compl. ¶ 47).

         Pichardo and her husband, Cesar Cristobal Veloz Tiburcio, filed their initial Complaint [ECF No. 1] on September 13, 2016. Plaintiffs have since twice amended the complaint, [3] and the Second Amended Complaint is the current operative pleading.

         The Second Amended Complaint contains 15 claims for relief under both state and federal law, against multiple Defendants. The federal law claims, all brought under 42 U.S.C. section 1983, include: (1) four counts of failure to intervene (Count I - Sgt. Price, Count II - Officer Jane Doe No. 1, Count III - Officer Carter, and Count IV - Corporal Johnson); (2) three counts of deliberate indifference (Count V - Nurse Harris, Count VI - Dr. Rodriguez-Garcia, and Count VII - Officer Jane Doe No. 1); and (3) one count of violation of privacy rights and unreasonable searches against Miami-Dade County (Count VIII). To avoid repetition, the Order addresses the particulars of each of these claims in the Analysis section, section III, below.

         The state law claims include: one count of negligence against the corrections officers and Miami-Dade County (Count IX); one count of negligence against the Public Health Trust (Count X); one count of negligent infliction of emotional distress against the corrections officers and Miami-Dade County (Count XI); one count of negligent infliction of emotional distress against Nurse Harris, Dr. Rodriguez-Garcia, and the Public Health Trust (Count XII); one count of negligent hiring and retention against the Public Health Trust (Count XIII); one count of violating Section 901.211, Florida Statutes, against Miami-Dade County (Count XIV); and one count of loss of consortium brought by Pichardo's husband against all Defendants (Count XV). Because the Court concludes dismissal of the federal claims is appropriate, and it will not retain jurisdiction over the remaining state law claims, this Order does not address the latter claims' sufficiency.

         II. LEGAL STANDARD

         “To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although this pleading standard “does not require ‘detailed factual allegations, ' . . . it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Id. (alteration added) (quoting Twombly, 550 U.S. at 555). Pleadings must contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citation omitted). Indeed, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556). To meet this plausibility standard, a plaintiff must “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (alteration added) (citing Twombly, 550 U.S. at 556).

         Courts apply this standard by (1) eliminating allegations which amount to “mere[] legal conclusions, ” Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (citation omitted); and (2) assuming the veracity of well-pleaded factual allegations and determining whether those “plausibly give rise to an entitlement to relief, ” id. (internal quotation marks and citation omitted; alteration added).

         Apart from the factual allegations of the Second Amended Complaint, which are construed in the light most favorable to the plaintiff, see Brooks, 116 F.3d at 1369 (citation omitted), the Court also properly considers the SIAB Memorandum and witness statements at the motion to dismiss stage (see note 2, supra). And where the exhibits “contradict the general and conclusory allegations of the pleading, the exhibits govern.” Crenshaw v. Lister, 556 F.3d 1283, 1292 (11th Cir. 2009) (quoting Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1206 (11th Cir. 2007) (holding, because the police reports attached to the complaint contradicted plaintiff's allegations about what the officers saw, the court would “not credit [plaintiff's] allegation” (alteration added))). This is because when a plaintiff relies on an attachment to support its allegations, courts may similarly depend on it to establish the facts. See Id. at 1292 (citing Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 754 (7th Cir. 2002) (“The fact remains that where a plaintiff attaches documents and relies upon the documents to form the basis for a claim or part of a claim, dismissal is appropriate if the document negates the claim.”)).

         III. ANALYSIS

         The Defendant corrections officers move to dismiss the federal law claims against them on the grounds they did not violate Pichardo's clearly established constitutional rights and so are entitled to qualified immunity. (See Mot. 5-12). Defendants further argue the section 1983 claim against Miami-Dade County should be dismissed because Plaintiffs have failed to properly satisfy the Monell[4] standard, as is required to bring a section 1983 claim against a local government entity. (See Id. 12-16). Nurse Harris and Dr. Rodriguez-Garcia contend because the Second Amended Complaint fails to state a claim of deliberate indifference, and there is no resulting constitutional violation, the medical staff Defendants are also entitled to qualified immunity. (See Id. 16-19).

         While not necessary to resolve the sufficiency of the pleading's federal claims, the Court notes two additional arguments raised by Defendants. Defendants argue Defendants Carlos Migoya and Daniel Junior should be dismissed because the Second Amended Complaint does not contain a single allegation involving them, and Counts II and VII must be dismissed as to the multiple Doe Defendants under Rule 4(m). (See Id. 2 nn.1-2). The Court addresses these arguments in turn.

         A. Claims Subject to the Qualified Immunity Defense

         Defendants assert Sgt. Price, Officer Carter, Cpl. Johnson, Nurse Harris, and Dr. Rodriguez-Garcia are all entitled to qualified immunity. (See Id. 8-12, 18-19).

         “A complaint is subject to dismissal under Rule 12(b)(6) when its allegations, on their face, show that an affirmative defense bars recovery on the claim.” Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003) (citing Marsh v. Butler Cty., 268 F.3d 1014, 1022 (11th Cir. 2001) (en banc). Once a qualified immunity defense has been asserted, unless Plaintiffs' “allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. Absent such allegations, it is appropriate for a district court to grant the defense of qualified immunity at the motion to dismiss stage.” Id. (alterations, ellipses, internal quotation marks, and citations omitted); see also Bloom v. Alvereze, 498 F. App'x 867, 872 (11th Cir. 2012) (“[A] defense of qualified immunity may be addressed in a motion to dismiss, which will be granted if the complaint fails to allege the violation of a clearly established constitutional right.” (internal quotation marks and citation omitted; alteration added)).

         Qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights.” Iqbal, 556 U.S. at 672 (internal quotation marks omitted) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). It “balances two important interests - the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). “Qualified immunity offers complete protection for government officials sued in their individual capacities if their conduct does not violate clearly ...


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